Friday, July 22, 2005

The conservatism of Judge John G. Roberts

As I suggested in a recent post, I think it would be a good idea for all of us to adopt a wait-and-see attitude towards the nomination of John Roberts to the Supreme Court. Which is to say, let's try to figure out what he's all about before we judge him. Yes, he's a conservative -- surprise, surprise -- but two recent articles in the Times offer those of us who generally oppose such conservatism some hope that he'll be more of an old-fashioned conservative than a right-wing radical:1. A one-year effort to market Roberts to social conservatives (see here):

For at least a year before the nomination of Judge John G. Roberts to the Supreme Court, the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them that he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion.When the White House began testing the name of Judge Roberts on a short list of potential nominees, many social conservatives were skeptical. In hearings for confirmation to the United States Court of Appeals for the District of Columbia Circuit, he had called the original abortion rights precedent "the settled law of the land" and said "there is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

A look at the 49 published opinions of Judge John G. Roberts, President Bush's nominee for the Supreme Court, reveals a distinct judicial philosophy, one that favors a strong executive, a cautious and self-effacing judiciary, limited federal power, and individual responsibility.That aligns him in many ways with the conservative wing of the current court. But his insistence, in the two years he has sat on the federal appeals court in Washington, that judges must engage in considerable self-restraint could add a distinctive voice to a court that has not been shy in recent years in asserting its own dominance.

In a decision last year, Judge Roberts referred to "the cardinal principle of judicial restraint - if it is not necessary to decide more, it is necessary not to decide more."

For two excellent takes on the Roberts nomination, one from the left and one from the right, see Dionne in the Post (here) and Brooks in the Times (here):

Dionne: "Judge John G. Roberts could turn out to be Antonin Scalia with a Washington Establishment smile."

6 Comments:

I still say the question is really, what are the alternatives? It's not as if Bush is going to nominate a liberal if Roberts goes down. And, I don't see any way that the Democrats can defeat this. Their only hope was that Bush would nominate someone that appeared extreme on their face (eg., Bork) so that the Democrats could rationalize a filibster and possibly convince some GOP moderates to vote against. I don't see any chance of this happening with Roberts--if for no other reason than he has little paper trail. A filibuster on Roberts would likely cause Frist to use the nuclear option and the Democrats would look obstructionist. So whether he is or is not Scalia in disguise is irrelevant. He is not someone that, IMO, the Democrats can beat and they should not throw away too much political capital trying.

A) Roberts was the most conservative nominee Bush could get away with without antagonizing Democrats.

B) Roberts was the most moderate nominee Bush could get away with without antagonizing his right-wing base.

Either way, Roberts is indeed an appealing candidate, and the more I read about him the less I worry. Of course, there isn't much of a paper trail, and that alone is a problem, but I agree that it doesn't make much sense to spend too much ammunition (political capital) on him. Besides, although he's a conservative, and perhaps a bit too much so for my liking, it doesn't appear that he's a radical ideologue bent on reshaping America or otherwise dismantling the liberal state. And, in the end, he could turn out to be a very good justice.

I don't think he is so moderate as the television is claiming. It strikes me that the swift move to confirm a right-wing nutjob in moderate's clothing may be just the ruse that the Bushies need to divert the nation's stuporous gaze from the Rove/Miller scandal.